Earlier this week, I made my long-awaited (ok, long-awaited by ME) return on WNPR’s ever-popular “Where We Live” show.

As always, I’m thankful for the invite.

My appearances date back quite some time (remember pizza and child labor in 2010?), so it was nice to be back in the studio to talk about age discrimination and other workplace issues.

So, is age discrimination still a problem?

The answer is plainly “yes”.

A related question, though is how MUCH of a problem? And is it getting better or worse?

By one measure, it’s been going down in a noticeable way the last several years.  In 2008 for example, there were over 24,500 charges filed on age grounds; in 2017 – it was down below 18,500 – a drop of over 20 percent.

Statistics, though, only tell part of the story because historically, you’d expect more to see more charges in a recession than an improving economy.

An article by The New York Times over the winter raised concerns that Facebook Job Ads were being used in a way to target younger potential applicants.  And some have suggested that the federal law itself is too weak.  

So, recognizing the age discrimination remains an issue in society is an easy task. But solving this — and ensuring that workplaces have a diversity of ages, remains a issue of which there are no easy answers.

WNPR’s “Where We Live”

This morning, I had the pleasure of visiting again with John Dankosky on his WNPR show, Where We Live.  Much of the discussion on the show revolved around a pending U.S. Supreme Court case, Lane v. Franks.I haven’t discussed that case on the blog yet, because we’re still waiting for the court’s opinion, but it’s worth a  quick note.  The court held argument on the case a few weeks ago and a decision is expected by June.

At issue in that case is whether an employee’s compelled testimony under a subpoena deserves First Amendment protection, even if the speech relates to his official job duties.

All of the speakers on the show agreed with the notion that it is unlikely we’ll see any great changes to the rule announced back in 2006 in the Garcetti case that speech “pursuant” to an employee’s official job duties does not fall within First Amendment protection. But it is likely that the court will issue a narrow exception to that — perhaps on the grounds that compelled testimony that is factually true is entitled to some protection.

During oral argument, several Supreme Court justices appeared troubled by the notion that an employee could be fired just for truthful speech about illegal activity at the workplace that was compelled by a subpoena.

What this will mean in Connecticut — which has a statute that applies the First Amendment to private employers — remains to be seen. Typically the Connecticut Supreme Court follows U.S. Supreme Court precedent in this area; but the Connecticut courts have been asked to review free speech rights under the State Constitution as well — a subject I’ve discussed in a prior post. 

My thanks to WNPR producers Lydia Brown and Catie Talarski for coordinating my visit as well.  You can find a link to the show’s stream at this link down on the page.

With all the talk about Edward Snowden, the notion of whistleblowers is back front and center in the public eye.  (Put aside for the moment that Snowden is not likely a “whistleblower” in the legal sense.)

On a federal level, whistleblower claims are mostly covered by the False Claims Act.  But at a state level, there are comparable state statutes that cover this.

Amidst all of this, though, the Commission on Human Rights and Opportunities plays an important role in investigating and prosecuting whistleblower retaliation cases.  Much of this is not recognized by the general public who typically view the CHRO has covering discrimination cases.

The CHRO has a whole section of the website devoted to whistleblowers and talks extensively about the protection afforded to them under Connecticut law.

If you haven’t taken a look lately, here’s a link.

In the meantime, I’ll be on I was on WNPR’s Where We Live again on Tuesday, July 16th (at 9a and replaying at 7p).  A link to the archived performance is available here.

As always, my thanks to John Dankosky, Catie Talarski and the entire WNPR staff for the invite and their generous hospitality.

Early on Wednesday, shortly before the Supreme Court issued its landmark rulings in same-sex marriage cases, I had the fortunate opportunity to return to one of my favorite radio shows, Where We Live.  (You can relive my previous experiences here and here, for starters.)

Where We Live host John Dankosky

Along with the host, John Dankosky, we spoke at length about the most recent U.S. Supreme Court cases dealing with employment law.

You can listen to the entire program here. (My segment starts around 18 minutes in.)

As I suggested on the show, there are several important takeaways from the court’s decisions.

1) The Court decisions do not bar harassment and retaliation claims from being brought or litigated. But employees will certainly have to meet higher thresholds to get their cases to trial and to win.

2) Unclear at this point, however, is whether these decisions will have any impact on state discrimination laws and cases.

3) The court was clearly concerned with the numbers of retaliation cases being brought. Will the court’s decision have an impact on those cases? In other words, will employees (and their attorneys) still seek to bring retaliation claims unabated? Time will tell.

My thanks again to the staff at Where We Live and the host for his hospitality.  Please be sure to listen to them.

Popularity contests have never been my thing.  And asking for votes is even less my thing too.

But as I recently noted, the popular Sad City Hartford blog has nominated me for the “Hot in Hartford” 2012 contest.  It is a silly contest, as the blog authors readily concede, but a contest nonetheless. 

And for the next 24 hours, I’m up against popular WNPR radio host John Dankosky, in a one-on-one poll. 

As of this afternoon, just FIVE votes separated us.  Since I know that there are several hundred of you that visit this blog every day, if you took 30 seconds to vote, we could easily send a message that the law is greater than a talk show even if just a fraction of you voted.

(Put aside, for the moment, that I have great respect for John Dankosky and, having met him in person, he’s the real deal.  But all’s fair in battle.)

So, please click here and vote for the me and the blog.  (No registration required.)  And show that a lawyer can win a popularity contest after all.   


Earlier today, I visited with John Dankosky on his wonderful WNPR show, "Where We Live".  You can listen to the replay on its website here.  

In the discussion, we touched on a variety of topics including the proposed Paycheck Fairness Act, which did not get through a procedural vote last week.

As I’ve said on this blog before, there is no doubt that gender discrimination still exists in our society and must be eliminated.  Indeed, there is also no debate that there is a median wage gap between men and women when looking at the raw statistics.

The issue we discussed today is: Why? Why do women tend to make less than men?  Is gender discrimination the reason? (No, according to a recent U.S. Census study and a 2009 study commissioned by the United States Department of Labor.)

If persistent gender discrimination isn’t the reason (or the main reason) for the gender wage gap, then are new laws, like the Paycheck Fairness Act bill necessary or a solution?

(As readers will no doubt know, this blog has continued to taken an avidly apolitical stance focusing instead on what the impact on any proposed legislation might be on employers so I leave it to politicians to debate the merits of the actual bill.)

But the suggestion that we do not have laws on the books to protect equal pay for equal work is a false one.   We already have an existing strict liability law on the books (the Equal Pay Act) that prohibits employers from treating men and women differently in the workplace except in limited circumstances. Here’s the key text:

No employer…shall discriminate… between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex…

Notably, a seniority system is one area where an employer IS allowed to treat employee differently. This most often occurs in a union environment where an employee who may be doing the same job as an employee 30 years younger will get paid more because of seniority.  If the older employee is male and the newer employee is female, then that would explain a wage gap.  Would unions go along with changing seniority systems to close the gender wage gap as well? 

These are complicated and nuanced issues. Everyone agrees that the gender wage gap can’t be closed with legislation alone and its important to discuss the other factors that everyone agrees also leads to this wage gap: job choices, negotiations, time out of the workplace to raise a family, etc.

Here are a few resources if you’d like more background on the subject:

Overall, nearly a third of the gender pay gap (27.4 percent) can be explained by differences in occupations, one-fifth (21.9 percent) can be explained by industry, and 10.5 percent can be explained by labor force experience.
This means that if women worked in the same jobs as men and had the same educational and experience levels, same propensity to be in a union, same racial and ethnic make-up as men—all factors we can measure—the gender pay ratio would rise from 80 percent to 91 percent of men’s pay levels. In other words, most of gender pay inequity can be explained by these factors.

Hopefully, today’s show can continue  to elevate the discussion of the gender wage gap into one of substance, rather than one where people are either "for" or "against" equal pay.  I thank John Dankosky for inviting me to appear.


Been a busy week so there’s time only for a few things to some recent and upcoming publications, podcasts and radio shows that I’m involved with.  My thanks to the respective producers or reporters for the opportunity.

This morning, I served as a guest on the terrific "Where We Live" program that airs daily on WNPR.  You can listen to the broadcast here.  It’s difficult to recap a one-hour broadcast in a short blog post so here are a few of my random observations and thoughts after today’s session. 

  • To some callers, the issue of child labor is an educational one — namely kids should be allowed to work so they get can understand the value of money and develop a strong work ethic.  Indeed one caller talked about how he had his kids (including an 8 year old) working on a brownfields site with machetes clearing land.  But lost in the conversation is the difference between giving kids some experience (fishing, for example) and making them do tasks we’d commonly view as work.  Where is the line to be drawn?
  • It remains to be seen whether a "parental exception" to child labor laws is something that will have any political backing in next year’s session. Representative Linda Scofield (D-Simsbury) called in to say that she might try to introduce something again but until more legislators view this as a priority, it’s hard to think that this will gain any traction.
  • Do you legislate to protect the worst-case scenarios even if a few incidents don’t really merit government intervention? So far, Connecticut has taken a strong approach only carving out some limited exceptions. 
  • Are 13 year old babysitters really violating state law?  The state’s website suggests yes, but that would put a lot of babysitters out of business. In the real world, these types of incidents are not policed by the Department of Labor. 
  • What you didn’t hear on the broadcast is that the computer system between the host and producer was down.  This led to the producers writing caller names and towns on paper and taping them to a window (see the picture above). The fact that you couldn’t tell this was going on is a testament to how good the host, John Dankosky, is.
  • Never underestimate the number of people who listen to NPR; I’m truly amazed at how many people tune in for a 9 a.m. show (replaying at 7 p.m.).

So what do you think? Are the state’s child labor laws too strict? Or do they strike the right balance between protecting kids and keeping them safe, and ensuring that they get some experience when they are older?

(Here are some photos taken by Chion Wolf from today’s session. My sincere thanks to her for permission to use these photos. )

Want to know more about the state’s child labor laws? I’ll be live in studio on Wednesday, June 23rd for the WNPR broadcast of Where We Live and we’ll be talking about the laws in the area and what’s being done to see that those laws are enforced. 

It’ll air at 9 a.m. EDT with a rebroadcast at 7 p.m. 

This will be the third time for me on the show and I’m very excited to be a repeat guest (with my own profile page on the WNPR website too!).   If you don’t listen regularly (or are outside the listening area), you can listen online to the broadcasts or any of the past episodes.  John Dankosky (the host) and his crew routinely provide a great extended perspective on issues of note and I expect tomorrow’s broadcast to be no different.   

Oh, and what does pizza have to do with child labor laws? Well, there’s a recent case that explains it all as I’ve previously covered in a prior post.  

So listen up and feel free to e-mail or tweet comments to the show. 

As I mentioned on Monday, I was fortunate to be invited back to appear on the "Where We Live", a Connecticut Public Radio staple that talks about local issues in ways you never thought you’d hear on the radio.  (Echoes of Sally Field’s speech of "You Like Me" keep running through my head.) 

For nearly a full hour, we talked about all things employment law related. Given the phone calls coming in, we probably could’ve done a few more hours too.  You can listen to the broadcast here, or download it to listen later.  My thanks to host John Dankosky and his producer, Libby Conn for the invitation and their hospitality.

Several people yesterday asked me about the experience and I thought I’d share some random observations about it and about some of the issues we discussed on air.

  • First, you should know if you ever visit the Connecticut Public Radio studios, there are free copies of "Barney" on VHS that they give away in the holding room downstairs. Not exactly, the same — I suspect — as the green rooms for say, "The Daily Show with Jon Stewart".
  • The studio where it is broadcast is actually quite small. A few microphones around a table and a computer for the host are all that the room can fit.
  • The room itself is an exercise in sensory deprivation; the walls are soundproofed. So without an echo, something seems off when you sit in the room. (Colin McEnroe’s new show is also broadcast from that studio.) 
  • On a more serious note, we had several callers talk about how to deal with illnesses in the workplace.  As I pointed out, there may be laws to protect the employee (such as FMLA or the ADA) but there’s still the other side to this — how to discuss (if at all) the illness in the workplace.  Each situation unfortunately will be different; some workplaces may be more understanding and sympathetic than others. Ultimately, consulting with a capable attorney to understand workplace rights (and, for employers, workplace obligations) may be the best approach.
  • Unfortunately, we couldn’t address some of the specific questions raised because of ethical rules but as I said, there are a number of free resources available for employers and employees to learn more about the topics. These can be found, for instance, at the Department of Labor website.  
  • Because of the numbers of calls, we didn’t have a chance to talk more about social networking’s implications in the workplace.  Ultimately, the question for employers to consider is what level of trust can you and should you place in your employees.  The answer to that question will vary from employer to employer.
  • One of the other topics that we had planned if time permitted was the fact that there are strict time period for employees to file claims against employers (and that employers can take advantage of if they are not followed).  However, I think we were enjoying getting the calls.
  • And lastly, John Dankosky really is as nice as he seems over the air. We had a pleasant chat afterwards about various employment law topics and felt as though we could’ve spent an hour more.  Certainly, our local airwaves are fortunate to have someone who has a natural curiosity about the way things work and loves to share it with his listeners.

Be sure to check out the show if you get a chance. You may end up learning a few things as well.